Delhi District Court
Rakesh Sharma vs M2K Victoria Gardens on 1 December, 2018
IN THE COURT OF SH. SATVIR SINGH LAMBA
ACJ-CUM-CCJ-CUM-ARC (NORTH), ROHINI COURTS,
DELHI
CS No. 188/2018
CS no. 535730/16
Rakesh Sharma,
S/o Late Sh. Zile Singh Sharma,
R/o 330, Mandir Wali Gali,
Azadpur Village, Delhi .........Plaintiff
VERSUS
1. M2K Victoria Gardens,
Through its Managing Director,
Office at: M2K Victoria Gardens,
Ring Road, Azadpur, Delhi-110033
2. North Delhi Municipal Corporation,
Through its Commissioner,
Office at: Civic Centre,
MCD Headquarters,
Deen Dayal Upadhyay Marg,
New Delhi.
........... Defendants
Date of Institution : 01.04.2013
Date Reserve for orders : 01.12.2018
Date of Decision : 01.12.2018
CS no. 535730/16
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JUDGMENT
1. Present suit has been filed by the plaintiff for the permanent and mandatory injunction against the defendants. BRIEF FACTS It is the case of the plaintiff that he is residing at House no. 330, Mandir Wali Gali, Azadpur Village, Delhi and near to his residence, a pucca road of 45' width runs from GT Road, near Azadpur Bus Terminal. It is alleged that the said road is a public road & used by the residents of Azadpur Village and no body has any right to encroach upon the said public land and to carry out construction over this road. It is alleged that on 25.12.2012 when the plaintiff was going out of his house, he found that defendant no. 1 had badly damaged a large portion of this road up to 7 feet and was trying to encroach upon the public road up to 7 feet width. The defendant no. 1 had put some pillars for illegal construction and encroachment. On inquiry, the plaintiff came to know that defendant no.1 would make construction on the entire road by 7 feet and will use the same as part of their project. It is alleged that due to this encroachment, it is CS no. 535730/16 Page 7 of 7 very difficult for the public including plaintiff to move on the road and there is always a traffic jam. It is further alleged that the plaintiff had approached Sh. Dharambir Yadav, president of Azadpur Village Resident Welfare Association (RWA) and informed him about the encroachment and he has also filed a complaint before the SHO, PS Adarsh Nagar, Delhi and various other authorities including the NDMC, but no action was taken. Hence, plaintiff has filed the present suit.
WRITTEN STATEMENT
2. Summons of the suit were served upon the defendants. Defendant no. 1 in his written statement has vehemently denied the allegations made in the plaint and have categorically stated that the plaintiff has no locus standi to file the present suit. It is contended that the plot on which the project is being developed had been purchased by way of tender from National Textile Corporation, Government of India Undertaking, erstwhile known as Ajudhia Textile Mills. It is contended that the building plan for the project are duly CS no. 535730/16 Page 7 of 7 approved by the DDA and the said plan has not been challenged by the plaintiff. It is further contended that as per para 23 of the letter of the Building Department of DDA dated 1.2.2008, defendant no. 1 is well within its powers to erect the boundary wall and since the building plan sanctioned by DDA has not been challenged by the plaintiff, he cannot seek any injunction against defendant no. 1 in this regard as the same would be in violation of the sanctioned building plan. It is contended that the entire case of the plaintiff rests on allegations with respect to encroachment of seven feet on the public land is completely false and baseless since the plan which is annexed with the plaint by the plaintiff himself is only a "proposed" development of Village Azadpur and has not yet been implemented and in fact, many of the roads, shown in the development plan do not even exist since the same have been encroached upon by the residents of Azadpur Village. Further, the plaintiff has not served a notice under Section 80 CPC to defendant no. 2 before filing the suit. The same is also in violation of Section 91 of the Code of Civil Procedure since the plaintiff has filed the suit in his personal capacity as an individual whereas the relief claimed pertains to public at CS no. 535730/16 Page 7 of 7 large. It is further contended that the project is at the verge of completion and the possession is soon to be handed over to the occupants.
3. Defendant no. 2 NDMC has taken similar stands as that taken by defendant no.1.
ISSUES
4. After completion of pleadings following issues were framed on 10.01.2017:
1. Whether the suit is barred by section 477/478 of the DMC Act 1957 for want of service of statutory notice ? OPD -2.
2. Whether suit is bad for non joinder/ mis joinder of the necessary party ? OPD 2.
3. Whether the suit is not maintainable as the plaintiff is concealed the material facts?OPD-2.
4. Whether the suit is barred under section 91 CPC ?CS no. 535730/16 Page 7 of 7
OPD-1.
5. Whether the defendant no. 1 has made any en-
croachment on the public road as per the layout plan -I enclosed with the suit ? OPP.
6. Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for? OPP.
7. Whether the plaintiff is entitled to the relief of per-
manent injunction as prayed for ? OPP.
Plaintiff Evidence
5. In support of its case plaintiff has filed evidence by way of affidavit, but despite giving various opportunities did not lead PE and hence, PE was closed.
Defence Evidence
6. Defendants also did not lead any evidence as plaintiff has not led any evidence and their DE was closed.
7. Firstly onus to prove his case is on the plaintiff. In order to CS no. 535730/16 Page 7 of 7 obtain the present relief, the plaintiff was supposed to prove that he is entitled for permanent mandatory injunction on the averments as alleged in the present case. The plaintiff was supposed to prove that the land in question is public road and no body has any right to encroach upon the said public road. The plaintiff was also supposed to prove that the alleged act of the defendant no.1 is an illegal encroachment. However, despite giving of sufficient opportunities, plaintiff has not lead any evidence to prove his case. Hence, the issue no.5,6 and 7 are decided against the plaintiff. Further, the defendant has also not led any evidence to prove the issue no.1 to 4, as plaintiff has not led any evidence. Hence, the issue no.1 to 4 are decided against the defendant. Accordingly, present petition is dismissed. No order as to cost.
File be consigned to record room after due compliance. Digitally signed by
SATVIR SATVIR SINGH
SINGH LAMBA
Announced in the Open Court LAMBA
Date: 2018.12.03
16:50:48 +0530
On 01.12.2018
(SATVIR SINGH LAMBA)
ACJ/CCJ/ARC (NORTH),
ROHINI COURT, DELHI
CS no. 535730/16
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